Right to respect for the family

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This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.

Although the term 'protection of the family' is used in the ICCPR, this guidance sheet uses the terminology 'respect for the family' which is used in more contemporary instruments such as the CRPD.

When do I need to consider the right to respect for the family?

The right to respect for the family under article 23 of ICCPR is closely related to the prohibition under article 17 of the ICCPR on unlawful or arbitrary interference with family. The right to respect for the family needs to be considered in a number of policy contexts.

In particular, you will need to consider the right to respect for the family and protection from arbitrary interference with the family when you are working on legislation, a policy or a program that:

affects the law relating to marriage, including parenting arrangements for children

affects the law relating to close or enduring personal relationships other than marriage, such as de facto relationships or relationships between persons of the same sex

provides for the removal of children from parents or other persons responsible for their care

provides for the entry into or removal from Australia of persons under migration laws in circumstances that may affect the unity of a family

provides for any social security benefit for families, including family assistance payment, or for welfare controls

relates to taxation benefits for families

relates to Paid Parental Leave, or

relates to family or domestic violence.

This list should not be regarded as exhaustive.

What is the scope of the right to respect for the family?

Meaning of family

The UN Human Rights Committee has considered the protection of the family to be closely related to the prohibition under article 17 on unlawful or arbitrary interference with family. It has stated that the term family in article 23 should have the same meaning as under article 17, in that it should be given a broad interpretation to include all those persons comprising the family as understood in the society of each country. In relation to Indigenous Australians, it is important that family be understood to include kinship structures, which encompass an extended family system often including distant relatives. There are other groups in Australia for whom family would include extended and other non-conventional family structures.

The Committee has made it clear that the definition of family is not confined by the concept of marriage. If countries recognise other arrangements that may constitute a family, those arrangements must be protected under article 23. However, the rights in article 23(4) are limited to married or formerly married couples.

The fact that arrangements other than marriage may attract the protection of article 23 does not necessarily mean that the different treatment of such arrangements will constitute a violation of article 23. The Committee has rejected a complaint about the laws of a country that prohibited same sex marriage, on the basis that the right in article 23(2) is expressed to apply to 'men and women', unlike other rights in the Covenant that apply to all persons.

The Human Rights Committee has interpreted article 23 to require countries to adopt legislative, administrative and other measures to protect families. The right may arise in a number of contexts.

Removal of children

Legislation authorising the removal of children from parents where their protection requires it raises the right of the family to protection. The Human Rights Committee has stated that the removal of children in these circumstances will not violate article 23 if it is lawful and not arbitrary and if the country can show that it has acted with the best interests of the child in mind.

Separation of family members under migration laws

The Human Rights Committee has considered a number of cases in which family separation has resulted from the enforcement of migration laws under which family members have been denied entry into or removed from a country. In some cases the Committee has found no violation of articles 17 and 23 on the basis that the denial of entry or removal was authorised by law, was not arbitrary and took into account the effect on the person's family relationships. The Australian Government's position is that the legitimate application of migration laws will not result in a breach of articles 17 and 23, even if it causes the separation of family members.

Consent to marriage

The requirement that the parties to a marriage consent to the marriage raises questions regarding marriageable age, and also the practice of 'forced or servile' marriages.

Declaration on the Rights of Indigenous Peoples

The Declaration on the Rights of Indigenous Peoples contains provisions relevant to the right of Indigenous peoples to respect for the family. The Declaration does not create legally binding obligations, but informs the way governments engage with and protect the rights of Indigenous people.

Can the right to respect for the family be limited?

Derogation

Under article 4 of the ICCPR, countries may take measures derogating from certain obligations under the Covenant, including the right protection of the family'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. Such measures may only be taken 'to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin'.

Limitation

Limitations on the right to freedom from interference with the family and to protection of the family under articles 17 and 23 of the ICCPR will not violate those articles if those actions are lawful and non-arbitrary. The use of the term arbitrary in the ICCPR means that any interferences with privacy of the family must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances.

Which domestic laws relate to the right to respect for the family?

The laws relating to marriage are contained in the Marriage Act 1961. Under the Act, marriage is defined as 'the union of 2 people to the exclusion of all others, voluntarily entered into for life'. The marriageable age under the Act is 18, although persons between 16 and 18 can be authorised to marry in exceptional circumstances.

Dissolution of marriage is governed by the Family Law Act 1975. Part VII of the Family Law Act deals with children. Section 60B provides that the objects of Part VII are to ensure that the best interests of children are met. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

The Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988 establish the child support scheme, which is designed to ensure that children receive a proper level of financial support that their parents are liable to provide.

What other rights and freedoms relate to the right to respect for the family?

Circumstances giving rise to consideration of the right to respect for the family may be relevant to:

the right to protection of children under article 24 of the ICCPR

the right to protection against exploitation, violence and abuse

the right to social security under article 9 of the International Covenant on Economic, Social and Cultural Rights

the right of children not to be separated from their parents against their will except in their best interests, in article 9 of the CRC.

Articles from relevant Conventions

International Covenant on Civil and Political Rights

Article 23

The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

The right of men and women of marriageable age to marry and to found a family shall be recognized.

No marriage shall be entered into without the free and full consent of the intending spouses.

States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

Article 17(1)

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.